Ajay Dev was convicted in 2009 of multiple counts involving the alleged repeated rape of his adopted daughter. Judge Tim Fall would sentence Mr. Dev to a term of 378 years. Many in the community, his family and the Vanguard believe that Mr. Dev was innocent of those charges and was wrongfully convicted.
In October, the 3rd District Court of Appeals heard oral arguments in the case. The Court had until January 17 to issue a ruling, and it put forth a 59-page opinion with four days to spare which upheld the conviction.
“Based on our review of the entire record, we are confident defendant received a fair trial,” the court writes. “The testimony of a single witness can support a conviction if that testimony is believed by the jury. Defendant claims the victim lied, but it was the responsibility of the jury to review all the evidence, including the witness testimony, and determine which evidence it found credible and dispositive.”
The court writes, “Our review of the record establishes that defendant’s convictions are supported by substantial evidence.”
Among other things, the court cites: “In addition to the victim’s testimony regarding the sexual offenses, there is evidence of a recorded phone conversation between the victim and defendant in which defendant made statements that he deserved to be put in prison, that he threatened to kill the victim and himself, that the victim’s life would be ruined because she had sex with defendant after she turned 18 and thus had consented, that they met together at a motel, and that nothing would happen because the victim had no proof.”
The court also writes, “There is also evidence regarding pornographic materials found on a laptop and computer tower in defendant’s house,” although the court does not mention he was acquitted on this charge.
Mr. Dev and his attorneys made ten challenges to the evidence claiming violations and errors which the court rejected.
(1) the trial court failed in its sua sponte duty to instruct the jury with CALCRIM No. 359 (corpus delicti — independent evidence of a charged crime) in connection with the use of statements he made during the recorded pretext call;
(2) the trial court erred in failing to appoint a certified Nepali interpreter to translate the statements defendant made during the pretext call, and it abused its discretion in permitting the victim to act as an “uncertified interpreter” of those statements;
(3) the trial court erred in instructing the jury with CALCRIM No. 358 because, according to defendant, the instruction directed the jury that all recorded statements made by defendant could be viewed without caution;
(4) the trial court erred in excluding evidence of the victim’s 2005 Nepal record of conviction;
(5) the trial court erred in admitting evidence of adult pornography;
(6) the prosecutor committed misconduct in arguing that a person using a file-sharing website cannot inadvertently or unknowingly obtain child pornography, and it was error to admit People’s exhibits 44-A, 44-B and 44-C (pertaining to files which an expert believed contained child pornography);
(7) the trial court erred in excluding evidence of an e-mail which purportedly showed that defendant was at work when someone accessed child pornography on his home computer;
(8) the prosecutor committed misconduct by commenting on defendant’s failure to testify;
(9) the trial court violated defendant’s constitutional rights by refusing to hold an evidentiary hearing to settle a proposed statement with regard to a missing jury note and whether the jury received certain trial exhibits during deliberations; and
(10) defendant is entitled to a new trial based on the cumulative effect of the asserted errors in this case.
The court concludes the following:
(1) the trial court erred in not instructing with CALCRIM No. 359, but the error was harmless because there is sufficient independent evidence of the crimes;
(2) the trial court was not obligated to appoint a certified Nepali interpreter, and did not prejudicially err in allowing the victim to testify regarding statements made in the pretext call, because there was no witness or party who could not speak or understand English, and it was for the jury to decide witness credibility and resolve conflicts in the evidence;
(3) we disagree with defendant’s characterization of CALCRIM No. 358, and the last sentence of that instruction does not apply to the parties’ dispute about the interpretation of defendant’s recorded pretext call statements;
(4) defendant fails to show that the purported Nepal court records were admissible or subject to judicial notice, and the claims he raises for the first time on appeal are forfeited;
(5) defendant’s claims in connection with the admission of adult pornography are forfeited because he did not make a specific objection on the grounds asserted on appeal in the trial court;
(6) defendant failed to preserve his prosecutorial misconduct claim for review because he did not object at trial to the challenged remarks, and it was not error to admit People’s exhibits 44-A, 44-B and 44-C;
(7) the trial court did not err in excluding the proffered e-mail because defendant failed to establish the foundational requirements for its admissibility;
(8) read in context, there is no reasonable likelihood the jury would have construed the prosecutor’s remarks as a reference to defendant’s failure to testify;
(9) no prejudicial error is demonstrated in the settled statement proceedings; and
(10) reversal is not required because defendant’s appellate claims are forfeited or lack merit.
The Vanguard will have a full analysis of this ruling in the coming days.
Here are three key articles that analyze the case:
Vanguard Analysis of Ajay Dev’s Appeal, Part I
Vanguard Analysis: Ajay Dev’s Appeal, Legal Arguments – Part II
Sunday Commentary: Judicial Error Lies at the Heart of Ajay Dev’s Wrongful Conviction
—David M. Greenwald reporting